In upholding Surrogate Court’s determination decedent’s domicile was New York, the First Department explained the relevant criteria as follows: The Surrogate’s Court Procedure Act defines domicile as “[a] fixed, permanent and principal home to which a person wherever temporarily located always intends to return” (SCPA 103[15]). “The determination of an individual’s domicile is ordinarily based […]
In determining a libel complaint brought by the Humane Society of the United States (HSUS) against defendants based upon an ad defendants placed in the New York Times which was captioned “Why is [HSUS] Helping a Terrorist Group Raise Money?” should have been dismissed, the First Department wrote: The court should have dismissed the amended […]
The First Department explained the elements of the offense of tampering with physical evidence as follows: …[A] person is guilty of the completed crime of tampering with physical evidence when, “[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent […]
The First Department determined the following scenario provided reasonable suspicion sufficient to justify the detention and frisk of the juvenile: A police officer testified that she was investigating an unruly crowd when she observed appellant walking towards her with his arm under his shirt, clutching an object held at his waist. Based on the rigidity […]
In dismissing the appeals, the First Department held that only an attorney can represent a voluntary association Petitioner is a voluntary association comprised of rent-regulated tenants in the subject building. Patricia Pillette is a member of the association and appears pro se purportedly on behalf of the association. However, Pillette is not an attorney, and […]
The First Department determined plaintiff’s allegations in support of a breach of fiduciary duty cause of action were not specific enough to survive a motion to dismiss: Because the underlying allegations of wrongdoing were inadequately pleaded, the fiduciary breach and injunction causes of action were not sustainable. Although plaintiff alleges, among other things, that defendant […]
In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed: The sponsor owed a nondelegable duty to plaintiffs to keep […]
In an action based on the allegation a bus was traveling too close to the curb when it struck plaintiff, the First Department (over a dissent) determined testimony that bus drivers’ operating criteria “are much higher than anyone else’s, so I would look at the accident by our standards a lot different from anyone else” […]
The First Department explained the application of res ipsa loquitur, where it was alleged a garage door suddenly came down on plaintiff’s head, as follows: The motion court correctly determined that res ipsa loquitur applies in this action involving an accident that occurred, according to plaintiff’s testimony, when a garage door suddenly fell and struck […]
In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order. Family Court, […]
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